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Miljus v CSR Ltd (No. 4)

Miljus v CSR Ltd (No. 4)

Case [2010] NSWSC 1325 14 December 2010

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CITATION: Miljus v CSR Ltd (No. 4) [2010] NSWSC 1325

HEARING DATE(S): 24-26 May 2010; 28 May 2010; 31 May 2010 - 3 June 2010; 7 June 2010; 1-3 September 2010.

JUDGMENT DATE :
14 December 2010

JURISDICTION: COMMON LAW

JUDGMENT OF: Davies J

DECISION: (1) Verdict for the Defendant. (2) Plaintiff to pay the Defendant's costs.

CATCHWORDS: TORTS - negligence - duty of care - builder in occupation of site - Plaintiff delivering concrete to the site - contract between builder and concrete supplier - independent contractor to concrete supplier employs Plaintiff - Plaintiff injured delivering concrete to the site - Plaintiff's truck overturns on public roadway leading to the building site - whether builder owes duty of care to the Plaintiff in respect of the roadway - self-imposed duties - absence of reliance by the Plaintiff - no duty of care.

LEGISLATION CITED: Civil Liability Act 2002
Construction Safety Regulations 1950
Factories, Shops and Industries Act 1962
Occupational Health and Safety Regulation 2001
Roads Act 1993

CATEGORY: Principal judgment

CASES CITED: ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305
Australian Iron & Steel Ltd v Ryan (1957) 97 CLR 89
Ballina Shire Council v Daley (1991) NSWCA 18
CSR Limited v Elliott (unreported – NSWCA – 23 June 1994)
Davey v Skinner (1961) SR (NSW) 648
Fraser v Victorian Railways Commissioners (1909) 8 CLR 54
Hardy v Mikropul Australia Pty Ltd [2010] VSC 42
Knight v Sheffield Corporation [1942] 2 All ER 411
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1
Mercer v South Eastern and Chatham Railway Companies’ Managing Committee [1922] 2 KB 549
Miljus v CSR Ltd [2010] NSWSC 569
Miljus v CSR Ltd (No 2) [2010] NSWSC 598
Overseas Tankship (UK) Limited v The Miller Steamship Co Pty Ltd (Wagon Mound) (No 2) [1967] 1 AC 617
Pacific Steel Constructions Pty Limited v Barahona [2009] NSWCA 406
Portelli v Tabriska Pty Ltd [2009] NSWCA 17
Pyrenees Shire Council v Day (1998) 192 CLR 330
Radovanovic v Brisbane City Council [2001] QSC 264
Ring v Rigby [2005] NSWCA 357
Smith v South Eastern Railway [1896] 1 QB 178
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16
Sydney Water Corporation v Abramovic [2007] NSWCA 248
Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES: Damien Miljus (Plaintiff)
Watpow Construction Pty Ltd (Second Defendant)

FILE NUMBER(S): SC 2008/289579

COUNSEL: B Gross QC & C J Callaway (Plaintiff)
M Scott & B Bradley (Second Defendant)

SOLICITORS: Schreuder Partners (Plaintiff)
Gadens Lawyers (Second Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

14 DECEMBER 2010

2008/289579 MILJUS V CSR LIMITED & ORS (NO. 4)

JUDGMENT

Background

1 The accident that gave rise to the proceedings occurred on 20 March 2001. The Plaintiff was employed by a company called Edensor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Miljus v CSR Ltd (No. 4)

Details

AGLC: Miljus v CSR Ltd (No. 4) [2010] NSWSC 1325
Case: [2010] NSWSC 1325
Decision Date: 14 December 2010

CaseChat Overview and Summary

Miljus v CSR Ltd (No. 4) involved a dispute where the plaintiff, who was delivering concrete to a building site, was injured when his truck overturned on a public roadway leading to the site. The defendant, CSR Ltd, was the builder occupying the site, and had a contract with a concrete supplier, who in turn employed the plaintiff as an independent contractor. The plaintiff sued the builder for negligence, arguing that the builder owed a duty of care for the condition of the roadway. The primary issue before the court was whether the builder owed a duty of care to the plaintiff concerning the roadway.

The court examined the nature of the relationship between the builder and the plaintiff. It found that the builder did not owe a duty of care to the plaintiff regarding the condition of the roadway. The court reasoned that there was no contractual or direct relationship between the builder and the plaintiff that would create a duty of care. Furthermore, the court found that the builder did not have control over the roadway, nor did the plaintiff rely on the builder for the maintenance of the roadway. The court held that the builder's role as the occupier of the site did not extend to imposing a duty of care on the roadway used by the plaintiff.

Consequently, the court dismissed the plaintiff's claim for negligence. The court held that there was no duty of care owed by the builder to the plaintiff concerning the condition of the roadway. The court found that the builder's role as the occupier of the site did not extend to imposing a duty of care on the roadway, and the absence of reliance by the plaintiff further supported this conclusion. The court's decision underscored the importance of establishing a direct relationship or reliance to claim a duty of care in such circumstances.

Orders